Communal Garden Usage

Lurcheral

I'm hoping to get a few opinions regarding my flat that I'm selling.

The property is a modernish block (1940s) with 12 flats and we have a communal garden at the rear. The garden is jointly owned by each flat and as we all own a 1/12th share of the freehold we all use the garden as and when we want. This is how it has been for the last 30 years (since I've lived there) and there has never been an issue. The garden isn't used often but sometimes people will have dinner out there, have a BBQ or read a book as there is some seating, a dining table and even a hammock swing out there for everyone to use.

Last week we reached a sticking point in the conveyancing as the buyer said that the lease only mentions free passage through the garden and doesn't mention being able to use it for recreational purposes. I have explained that we all have equal use of the garden and it's never been an issue but they want the leases changed to reflect this.

At the request of my solicitor I did get an email from a couple of the freehold directors stating that my buyer can use the garden for recereational purposes and as he also owns a share of the freehold he can use it whenever he wants but this isn't enough.

Is my buyer being difficult or are they completely right to adopt this position? I'm not sure where I can go with this as I doubt all 12 flats are going to be prepared to change their lease but I just wondered what people thought so I can get an idea how best to deal with it.

My solicitor for what its worth thinks that owning a share of the freehold and having an email from two of the directors stating he can use the garden should be sufficient but we have reached an impasse now and whilst the lease mentions access it doesn't mention not being able to use it for anything else.

Unfortunately I didn't realise that it doesn't mention much about its usage and thats partly because for 30 years we've all regarded the garden as being useable by everyone so it never occured to me that it may not be stated.

ReadingTim

I'd suggest that if the buyer wants to change the lease then they can arrange it themselves after they've bought the flat at the price you previously agreed. I would not be doing it as I've never had an issue during the time I owned the place. Their call.

hazyjo

Sounds like they should be buying a house/flat with a private garden lol! Although to be fair, it'll prob be their solicitor being picky, not the buyers.

I would either give up with them and remarket and change the description, or offer to knock a few grand off (if affordable).

It may be that someone else moves in and decides that those who aren't officially entitled to use the garden can no longer use it so I do get where they're coming from.

I also doubt all leases will be amended so it sounds to me like they're buying the wrong property for them.

My first flat was exactly the same. I didn't actually have permission in my lease to use the communal garden as my flat was at the front, but everyone was under the impression we could all use it and I've since seen it marketed saying 'communal garden'. It was also 'share of freehold'.

Not the same flat is it lol :laugh:

moneyistooshorttomention

I'm guessing the buyers concerns are the thoughts that cross my mind whenever I spot a property that part-owns a communal garden.

That being:
- who decides what style the garden will be in?
- what happens about the cost of maintaining the garden as is? or changing it to a different style if wanted?

I know that my first thought is to wonder whether everyone in the place has gone along with Mr X in Flat Z that has decided how he wants the garden and they've not been that bothered. But then someone with different tastes (eg more modern) comes in and knows they would like the garden in a more modern style (or whatever other style) and wonders if Mr X would be reluctant to give up his previous role as "style arbiter".

So I think it would help if you can find ways to address that particular concern.

I know "eyebrows have been raised" here at my decision in current house to have a very different style of garden to surrounding ones and they'll be raised even more when I have the money to finish it off - but it doesnt matter - because I am the only one that owns it/uses it/etc. So I can well see why someone who was keen on gardening themselves would worry...

Lurcheral

Thanks for your replies so far. I do understand the sentiment of someone else coming along and having an issue with it. With regards to maintenance and taste we all equally own the share of freehold and we are resident run so we all decide at a meeting what we want to do with the garden (no external management company). If anyone has any specific requests we decide as a group what to do. Also the maintenance comes out of the service charge.
So as someone who owns the share of freehold if we all want to use the garden then we are allowed to and if one person had an issue theyd be out voted anyway.

With regards to the marketing, the listing only stated that there was a communal garden, didn't mention how it was used but I don't know if the estate agent said that it can be used to sit in. I guess she would have as she would have benn under the same impression as me. However the blurb in the listing just states that there is a communal garden.

bouicca21

My lease does actually state that I have the right to use the communal garden, and to authorise others to do so. In OP's case I would have thought that being shared freehold, the statement from the directors was enough.

As for Money's point about who decides on style, I'd argue that changing the garden counted as an improvement so not authorised by the leases. Maintenance should be covered by the service charge, but not change.

moneyistooshorttomention

bouicca21 wrote: »

As for Money's point about who decides on style, I'd argue that changing the garden counted as an improvement so not authorised by the leases. Maintenance should be covered by the service charge, but not change.

If that were the case - then I'd have visions of hydrangeas and big patches of grass and maybe not even being able to put a "nice" type table/chairs out there for sitting on. So I can see that would be problematic for some.

G_M

I think the buyer is being slightly paranoid. FTB? Or is it his solicitor who's the problem?

If it is the buyer themselves, this might be best resolved between you directly rather than via solicitors.

Invite the buyer round for another viewing. Bake a cake. If you can get the Director round as well, so uch the better. Explain how the block management works, who uses the garden, how and when, and reassure them that it's a friendly block to live in.

If it's the buyer's solicitor and/or mortgage lender, then best leave it to your solicitor. But I don't see things changing in that case, so you might have to start re-marketing.

bouicca21

I am left wondering what 'a very different style' of garden is, apart from the lack of hydrangeas of course. Parterres? Japanese? I've seen plenty of gardens with nary a hydrangea in sight. Sorry, meandering off topic.

Norman_Castle

Lurcheral wrote: »

At the request of my solicitor I did get an email from a couple of the freehold directors stating that my buyer can use the garden for recereational purposes and as he also owns a share of the freehold he can use it whenever he wants but this isn't enough.

Assuming all the leases are the same its in no-ones interest to limit residents access to the garden. Are all the leases the same?

There is a communal garden where I live and one ground floor resident has repeatedly tried to claim the area and access nearest her flat for herself so I can understand a buyer wanting clarity.

Lurcheral

Thanks everyone it’s really useful hearing all your thoughts. I do understand both sides of the argument I just don’t know how best to deal with it. I’ve been on the market for over a year and it’s been difficult so remarketing is a hard pill to swallow. Solicitor thinks that it shouldn’t be an issue and it certainly hasn’t with sales in the past. It is a really nice block and the way the communal garden is run is how it has been run for he last 50 years. All our leases are the same and we are all directors of the management company, so all decisions are jointly made by us. No one has more ‘power’ than anyone else when it comes to decisions.

The lease mentions free passage into the garden but doesn’t state anything else so it doesn’t say you can’t use it for sitting in and as we have furniture there it clearly is to be used.